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Published online by Cambridge University Press: 26 January 2019
This article discusses the legal regimes for enforcing foreign arbitral awards within the East African Community (EAC). It focuses specifically on the enforcement of awards from partner states as well as from the East African Court of Justice (EACJ), which, although a supranational court, has jurisdiction to accept parties’ designation to act as an arbitral tribunal. The EAC has not yet developed a supranational community law based regime for enforcing foreign arbitral awards. The current dominant regime for enforcing such awards is the New York Convention. The article examines how the convention has been applied in the partner states and discusses aspects of the existing jurisprudence that demand reconsideration. It examines the suitability of applying the convention regime to awards from the EACJ, and the case for harmonizing the legal regimes for enforcing foreign arbitral awards within the EAC.
LLB (Ghana), LLM (Cambridge), LLM (Harvard), PhD (University of British Columbia), Fellow of the Ghana Academy of Arts and Sciences. Associate professor, Faculty of Law, Thompson Rivers University, Canada.
1 330 UN Treaty Series 38.
2 575 UN Treaty Series 159.
3 The Republic of South Sudan is the newest member of the EAC. It acceded to the EAC Treaty on 15 April 2016 and became a full member on 15 August 2016.
4 This article will not address the enforcement of ICSID awards in the partner states.
5 See Muigua, K “Building legal bridges: Fostering eastern Africa integration through commercial arbitration” (2015) 1 Alternative Dispute Resolution (CiArb, Kenya) 49Google Scholar.
6 For a more comprehensive and comparative discussion of some of the issues in this part, see Oppong, RF Legal Aspects of Economic Integration in Africa (2011, Cambridge University Press) at 231–43CrossRefGoogle Scholar.
7 2144 UN Treaty Series I-37437.
8 Société Eram Shipping Company Limited v Hong Kong and Shanghai Banking Corporation Limited [2003] UKHL 30, para 10.
9 See, for example, Inter-American Convention on International Commercial Arbitration 1975 and Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards 1979.
10 OHADA Uniform Act on Arbitration 2017.
11 Revised Treaty of Chaguaramas establishing the Caribbean Community Including the CARICOM Single Market and Economy, art 74(2)(i).
12 Id, art 223(3). Art 223(1) and (2) provide: “(1) The Member States shall, to the maximum extent possible, encourage and facilitate the use of arbitration and other modes of alternative disputes settlement for the settlement of private commercial disputes among Community nationals as well as among Community nationals and nationals of third States. (2) Each Member State shall provide appropriate procedures in its legislation to ensure observance of agreements to arbitrate and for the recognition and enforcement of arbitral awards in such disputes.”
13 European Convention on International Commercial Arbitration of 1961, 484 UN Treaty Series 349, preamble. The parties to this convention are mainly western and eastern European countries. Burkina Faso also ratified the convention in 1965.
14 For a commentary on the convention, see Hascher, DT “European Convention on International Commercial Arbitration of 1961 commentary” (2011) 36 Yearbook Commercial Arbitration 504Google Scholar.
15 The few reported cases include: Glencore Grain Ltd v TSS Grain Millers Ltd [2002] KLR 1 (enforcement of an English arbitral award); Tanzania National Roads Agency v Kundan Singh Construction Limited misc civil appln no 171 of 2012 (High Court of Kenya, 2013) (enforcement of a Swedish arbitration award); Tanzania Electric Supply Company Limited v Dowans Holdings SA (Costa Rica) misc civil appln no 8 of 2011 (High Court of Tanzania, 2011) (enforcement of an English arbitral award); Open Joint Stock Company Zarubezhstroy Technology v Gibb Africa Limited misc appln no 158 of 2016 (High Court of Kenya, 2017) (enforcement of a Russian arbitral award); Foxtrot Charlie Inc v Afrika Aviation Handlers Limited civil suit 557 of 2004 (High Court of Kenya, 2012) (enforcement of a Swiss arbitration award). For older cases, see for example Kassamali Gulamhusein & Co (Kenya) Ltd v Kyrtatas Brother Ltd [1968] EA 542 (enforcement of an English arbitral award in Kenya); Universal TPT Co Ltd v Tzortzis [1973] EA 310 (enforcement of an English arbitral award in Kenya); Zagoritis Estates Ltd v WJ Tame Ltd [1960] EA 384 (enforcement of a Kenyan arbitration award in Tanzania); Tanzania Cotton Marketing Board v Cogecot Cotton Company SA [1997] TLR 164 (enforcement of an English arbitral award in Tanzania).
16 EAC Treaty, art 32. EACJ Arbitration Rules 2012, available at: <http://eacj.org//wp-content/uploads/2014/05/Arbitration-Rules-of-EACJ.pdf> (last accessed 21 November 2018). Ugirashebuja, E, Ruhangisa, JE, Ottervanger, T and Cuyvers, A East African Community Law: Institutional, Substantive and Comparative EU Aspects (2017, Brill Academic Publishers) at 248–50CrossRefGoogle Scholar.
17 In comparison, in Building Design Enterprise v Common Market for Eastern and Southern Africa appln no 1 of 2002 (COMESA Court of Justice, 2002), the COMESA (Common Market for Eastern and Southern Africa) Court of Justice sat as a supranational court that had accepted the parties’ designation to act as an arbitral tribunal. However, the parties settled and the arbitral proceedings were discontinued.
18 Arbitration cause no 1 of 2012.
19 This case summary is taken from Ugirashebuja et al East African Community Law, above at note 16 at 250.
20 See generally Happold, M and Radovic, R “ECOWAS Court of Justice as an investment tribunal” (2018) 19 Journal of World Investment & Trade 95Google Scholar.
21 Kenya: Arbitration Act 1995, secs 36–37; Rwanda: Law on Arbitration and Conciliation in Commercial Matters 2008, secs 50–51; Tanzania: Arbitration Act 2002; Uganda: Arbitration and Conciliation Act, 2000, secs 39–47.
22 With the exception of Rwanda, all the EAC partner states that are parties to the New York Convention have entered a reservation that they will apply the convention only to recognize and enforce awards made in the territory of another contracting state.
23 J Fawcett and JM Carruthers Cheshire, North & Fawcett Private International Law (14th ed, 2008, Oxford University Press) at 652–54.
24 New York Convention, art III.
25 24 International Legal Materials 1302.
26 See UNCITRAL Model Law, art 36(a)(i)(iv)(v); New York Convention, art V(a)(d)(e).
27 See Schreuer, CH The ICSID Convention: A Commentary (2001, Cambridge University Press) at 1082–84Google Scholar.
28 See, for example, Kenya: Investment Dispute Convention Act 1966; Uganda: Arbitration and Conciliation Act 2000, secs 45–47. For a survey of the statutes of African states implementing the ICSID Convention, see Asouzu, AA International Commercial Arbitration and African States: Practice, Participation and Institutional Development (2001, Cambridge University Press) at 370–78CrossRefGoogle Scholar.
29 Case C-224/01, Gerhard Köbler v Republik Österreich [2003] ECR I-10239.
30 See for example Hon Sitenda Sebalu v The Secretary General of the East African Community, The Attorney General of the Republic of Uganda, Hon Sam K Njuba and the Electoral Commission of Uganda ref no 1 of 2010 (EACJ, First Instance Division, 2011) in which the court held that the appellate jurisdiction provided for by article 35A relates to internal appeals within the EACJ itself (from the First Instance Division to the Appellate Division), that such appeals are limited to points of law, lack of jurisdiction or procedural irregularities, and that the appellate jurisdiction has nothing to do with appeals from national courts. See also Mary Ariviza and Okotch Mondoh v Attorney General of the Republic of Kenya and Secretary General of the East African Community ref no 7 of 2010 (EACJ, First Instance Division, 2011) in which the court held that the matters into which the Court can inquire under article 30(1), in exercise of its original jurisdiction, do not include judicial decisions, and that judicial decisions can only be subjected to requisite inquiry or review in the exercise of an appellate or review jurisdiction.
31 Kariuki, F “Challenges facing the recognition and enforcement of international arbitral awards within the East African Community” (2016) 4/1 Alternative Dispute Resolution (CiArb, Kenya) 71Google Scholar. See generally Asouzu, AA “African states and the enforcement of arbitral awards: Some key issues” (1999) 15 Arbitration International 1CrossRefGoogle Scholar; E Onyema “Enforcement of arbitral awards in sub-Sahara Africa” (2010) Arbitration International 115.
32 For a more extensive discussion on the regime for enforcing arbitral awards in Tanzania, see Mashamba, CJ Alternative Dispute Resolution in Tanzania: Law and Practice (2014, Mkuki Na Nyota Publishers Ltd) at 148–59Google Scholar; WB Kapinga and ES Ng'maryo “Registration and enforcement of arbitral awards in Tanzania” (2013) The European, Middle Eastern and African Review 94; Rana, R “The Tanzania Arbitration Act: Meeting the challenges of today with yesterday's tools?” (2014) 2/1 Alternative Dispute Resolution (CiArb, Kenya) 229Google Scholar.
33 27 League of Nations Treaty Series 157.
34 92 League of Nations Treaty Series 301.
35 Opening speech by guest of honour, Hon Mohamed Chande Othman, chief justice of Tanzania, at the annual general meeting of the Tanzania Institute of Arbitrators, 21 July 2016, Dar es Salaam, at 9–10. See generally sec 11(2) of Tanzania's recently enacted Natural Wealth and Resources (Permanent Sovereignty) Act, 2017, which provides that “disputes arising from extraction, exploitation or acquisition and use of natural wealth and resources shall be adjudicated by judicial bodies or other organs established in the United Republic and in accordance with laws of Tanzania”.
36 Yugraneft Corp v Rexx Management Corp 2010 SCC 19, paras 1–34.
37 See Arbitration Act, sec 30(1)(e) read together with art 1(e) of the 4th schedule.
38 Tanzania National Roads Agency v Kundan Singh Construction Limited civil appeal no 38 of 2013 (Kenya Court of Appeal, 2014).
39 Kayihura, D “Rwanda” in Bosman, L (ed) Arbitration in Africa: A Practitioner's Guide (2013, Kluwer Law International) 223 at 229Google Scholar, where he noted that “there is no known award whose enforcement has been rejected by a court in Rwanda on any ground whatsoever so far”.
40 Above at note 15.
41 Kanoria v Guinness [2006] EWCA Civ 222, paras 24–26; China Nanhai Oil Joint Service Corporation Shenzhen Branch v Gee Tai Holdings Limited (1995) 2 HKLR 215; Hill, J “The exercise of judicial discretion in relation to applications to enforce arbitral awards under the New York Convention 1958” (2015) 36 Oxford Journal of Legal Studies 304Google Scholar.
42 Foxtrot Charlie, above at note 15, para 32.
43 Tanzania Electric Supply Company Limited v Dowans Holdings SA (Costa Rica) misc civil appln no 8 of 2011 (High Court of Tanzania, 2011).
44 Ibid.
45 Ibid.
46 Tanzania Electric Supply Company Limited v Dowans Holdings SA (Costa Rica) civil appln no 142 of 2012 (Court of Appeal of Tanzania, 2013). The matter was amicably settled out of court and the full appeal was not heard.
47 Misc appln no 158 of 2016 (High Court of Kenya, 2017), para 71.
48 Mboce, N “Enforcement of international arbitral awards: Public policy limitation” (2015) 3/1 Alternative Dispute Resolution (CiArb, Kenya) 101Google Scholar; Mcdonald, J and Gachie, A “Reflections on public policy in international commercial arbitration: A Kenyan perspective” (2016) 4/2 Alternative Dispute Resolution (CiArb, Kenya) 204Google Scholar.
49 [2013] CCJ 5 (AJ), para 21.
50 Above at note 15.
51 KSC International Ltd (previously Kundan Singh Construction Ltd) v Tanzania National Roads Agency, Svea Court of Appeal (Hovrätt), judgment of 3 May 2013, case no T 3735-12, unofficial English translation available at: <www.lcia.org/media/Download.aspx?MediaId=354> (last accessed 21 November 2018).
52 Kundan Singh Construction Ltd v Tanzania National Roads Agency misc civil cause 248/2012 (Kenya High Court, 2012).
53 See, for example, Collins, Lord (ed) Dicey, Morris and Collins on the Conflict of Laws (2012, Sweet & Maxwell)Google Scholar, para 16-137; Corporacion Transnacional de Inversiones, SA de CV v STET International, SpA (1999) 45 Ontario Reports (3d) 183.
54 Tanzania National Roads Agency v Kundan Singh Construction Limited civil appeal no 38 of 2013 (Kenya Court of Appeal, 2014).
55 There is a right of appeal with respect to domestic awards.
56 Above at note 15 at 49.
57 Ibid. Although the court appears to have taken an expansive view of public policy, it is clear from the judgment that there were significant legal deficiencies with respect to the partial and final awards in this case; the court's conclusion to refuse recognition on grounds of public policy is well supported.
58 Misc appln no 158 of 2016 (High Court of Kenya, 2017), para 61.
59 Art 50(1) provides: “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”
60 See generally Patchett, KW Recognition of Commercial Judgments and Awards in the Commonwealth (1984, Butterworths) at 210–35Google Scholar.
61 Uganda has a different statute for enforcing judgments made in the United Kingdom and other Commonwealth countries and the Republic of Ireland: sec 1 of the Reciprocal Enforcement of Judgments Act 1922 includes an equivalent provision to that in sec 8(2) of the Foreign Judgment (Reciprocal Enforcement) Act.
62 Oppong, RF Private International Law in Commonwealth Africa (2013, Cambridge University Press) at 402–05CrossRefGoogle Scholar.
63 Patchett Recognition of Commercial Judgments, above at note 60 at 210.
64 New York Convention, art III.
65 Misc cause no 0308 of 2016 (High Court of Uganda, 2017).
66 Id at 3.
67 Id at 4.
68 Id at 2.
69 Reciprocal Enforcement of Judgments Act 1922, sec 1.
70 See generally Dickerson, CM “The OHADA Common Court of Justice and Arbitration: Exogenous forces contributing to its influence” (2016) 79 Law and Contemporary Problems 62Google Scholar.
71 R Ziadé and C Fouchard “New OHADA arbitration text enters into force” (30 March 2018) Kluwer Arbitration Blog, available at: <http://arbitrationblog.kluwerarbitration.com/2018/03/30/new-ohada-arbitration-text-enters-into-force/> (last accessed 6 November 2018).
72 BCB Holdings Limited and the Belize Bank Limited v Attorney General of Belize [2013] CCJ 5 (AJ).
73 Belize Bank Limited v The Attorney General of Belize [2017] CCJ 18 (AJ).
74 It is interesting whether the EACJ has jurisdiction to hear a preliminary reference made by an arbitral tribunal. This issue arose in the EU in case 102/81, Nordsee Deutsche Hochseefischerei GmbH v Reederei Mond Hochseefischerei Nordstern AG & Co KG, in which the EUCJ held that an arbitrator who is called upon to decide a dispute between the parties to a contract under a clause inserted in that contract is not to be considered as a “court or tribunal of a member state”. For a review of more recent EUCJ jurisprudence recognizing certain arbitral tribunals as courts or tribunals of a member state, see P Paschalidis “Arbitral tribunals and preliminary references to the EU Court of Justice” (2016) Arbitration International 1.
75 Reference for a Preliminary Ruling under Article 34 of the Treaty Made by the High Court of the Republic of Uganda in the Proceedings between the Attorney General of the Republic of Uganda and Tom Kyahurwenda case stated no 1 of 2014 (EACJ, Appellate Division, 2015).
76 Case C-126/97, judgment of 1 June 1999 [2000] 5 CMLR 816.
77 See generally case C-536/13, Gazprom OAO v Republic of Lithuania, which also involved a preliminary reference resulting from an action to enforce an arbitral award in an EU member state. In that case, the EUCJ held (in para 45) that: “Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not precluding a court of a Member State from recognizing and enforcing, or from refusing to recognize and enforce, an arbitral award prohibiting a party from bringing certain claims before a court of that Member State, since that regulation does not govern the recognition and enforcement, in a Member State, of an arbitral award issued by an arbitral tribunal in another Member State.”
78 Oppong, RF “Legal harmonisation in African regional economic communities: Progress, inertia or regress” in Döveling, J, Majamba, H, Oppong, RF and Wanitzek, U (eds) Harmonisation of Laws in the East African Community: The State of Affairs with Comparative Insights from the European Union and Other Regional Economic Communities (2018, LawAfrica) 113 at 129Google Scholar.
